Litigation Support Requires Both Talent and Technology: Document review works best when all players can bring their skills to the fore

Thursday, May 5, 2016 - 09:56

With over 30 years of litigation support experience between them, Al Sisemore of Inventus and Janelle Eveland Belling of Perkins Coie have seen an evolution in both managed services technology and techniques. In this interview they discuss their strategies on delivering successful and efficient outcomes to their clients. Their remarks have been edited for length and style.

MCC: Please give our readers a brief overview of your backgrounds in managed review.

Belling: I have more than 20 years of experience in litigation support, 18 of which have been with Perkins Coie’s e-discovery support team. I’ve held integral roles in the development and continued management of our document review offerings since the inception in 2007.

From our firm’s perspective, we have a practice group called E-Discovery Services & Strategy, or ESS. We’ve recently expanded our managed review centers. We’ve included managed review in Chicago and Phoenix, in addition to Seattle. Our ESS practice uses a combination of technology with resources that we have being a global law firm to ensure our matters are handled with customized teams – for example, a team of attorneys supplemented with technology professionals who collaborate with industry-specific lawyers and our clients on managed review.

We focus on ensuring our review attorneys are proficient in industry-leading technology and that they understand the repeatable and defensible work flows that were designed by our technologists. We have extensive experience with litigation, governmental investigations, analysis of corporate documents and a variety of non-litigation document review. In addition, we offer a full range of foreign language review.

One of the ESS goals is to expand not only the substantive scope of the review projects, things like due-diligence work, but also our geographic scope. In addition to Chicago, Phoenix and Seattle, we will be expanding our services to China and want to continue to grow and expand. We know that our clients are doing business and have facilities around the world, so our goal is to be an end-to-end e-discovery provider no matter where the data resides or the particular language they use in their communications. In order to do that, we know that we need to be able to assist with the discovery-related tasks regardless of the continent or the country.

Sisemore: I have ten-plus years of experience in litigation support, three years as a project manager when I first started in the industry and seven-plus years as a sales professional. I’ve been with Inventus for about 18 months. While my primary focus is on consulting for e-discovery services and technology, the majority of the matters I’ve worked on in the past have had a review element, so I’ve had various levels of involvement with managed-document review. From a company perspective, domestically, we work with partners for document review, like Perkins Coie. However, internationally, we do provide our clients’ document review directly. We have performed managed review in 20 jurisdictions and reviewed documents in 21 languages in the last few years alone.

MCC: When you’re working with corporate legal departments, what are your first steps, and how do you help them prepare for the process?

Belling: One of our first steps is to understand the specifics of the matter. We want to know our client’s goals and any deadlines or requirements that we need to meet. We also want to make sure we’re taking into consideration our corporate clients’ information systems and then clearly establishing the role in managed review that our client is going to be playing. It’s important that our team is complementing our clients’ efforts. Additionally, a plan for meeting and managing their expectations, establishing review deadlines and addressing budgets will be established. It’s really important for us to develop clear roles and responsibilities and create that managed review plan to ensure everybody understands what’s expected of them and the impact their role may have on the success of the review.

Finally, we’re not simply focused on finishing the document review; we want to ensure that our clients and attorneys representing our clients are learning relevant facts from the document review. We need to understand their goals prior to, during and post-document review. If applicable, case analysis, hearing and deposition preparation, etc. can be incorporated into review work flows to increase the efficiency and decrease the redundant review that often results, thus reducing cost post-document review.

Sisemore: We share that perspective. I would add, too, that collaboration early in a process is an important piece. As an example, Inventus is handling the collection, ECA processing and hosting services. It’s important to establish an open line of communication and discuss the specifics of how data is going to be handled throughout the process. The end goal is to significantly reduce the amount of documents that need to be reviewed, ultimately reducing review cost. Establishing best practices and work flows at the onset of a new matter will help ensure that we meet this goal.

MCC: Going into managed review, who are the key players, and what are their roles?
Who are your key contacts within the corporate legal departments?

Belling: At Perkins, we initially collaborate with in-house counsel and our Perkins Coie attorneys. Once again, we want to understand their goals and their role in managed review. Our typical managed review team is going to have a combination of our client and attorneys from Perkins Coie, as well as some key roles within our E-Discovery Services & Strategy practice group. In particular, we have a lead attorney responsible for managing the review attorney team. They provide the regular updates on pace, progress, keep everybody apprised of budget, etc. The lead attorney works very closely with our technology professionals and consultants to ensure that the appropriate technologies are being used, that quality control is being implemented in real time, and that the technology is being fully leveraged.

Once again, roles and responsibilities are established and clearly defined. This is especially important when there are multiple parties with critical roles and competing demands and deadlines that could potentially impact the success of a review. One person’s misunderstanding of their role and responsibilities might lead to a missed deadline. Roles and responsibilities should be established and documented before the review starts. It’s also important to share them with clients, service providers or anyone else involved that are considered critical to success. This allows everyone the chance to identify areas that may need additional clarification. These steps help to ensure everyone is successful in their role, thus resulting in a successful and efficient document review.

We also understand that value is often shown through what we deliver and report during and after managed review has concluded, as well coming in under budget. We work with our clients to identify the reporting and deliverables required to ensure that we’re meeting their expectations and delivering what they need, when they need it. Our work flows and technologies allow us to provide real-time reporting and customized post-project deliverables.

MCC: What are the skills needed by the legal and technical professionals to execute a successful and efficient managed review? With the rapid advances in predictive coding and artificial intelligence, what kinds of changes do you anticipate in the skills needed?

Belling: The advanced use of analytics and predictive coding should be standard, in my mind, on most if not all matters. Even if you’re only using it to prioritize your review and considerably enhance the quality of the review decisions. With data volumes exploding and an obligation to be efficient and save our clients money, technology needs to be deployed to increase the pace, to improve the consistency and to identify ways to quickly demonstrate our value by bringing key documents, issues or other topics not considered to the attention of our clients and the attorneys we support.

Analytics and predictive coding provide attorneys and technologists a catalyst to identify and feed key and relevant data and facts to our clients in real time, rather than waiting until the review is complete. Additionally, they allow us to validate data sets for review and identify methods to further reduce the data set that might be highly irrelevant. In my mind, technology should be leveraged with quality, pace, consistency, defensibility and cost reduction in mind.

MCC: We’ve been hearing a bit about reviewing these new alternative communications, like Slack and Skype texting, that a lot of companies are introducing. Is that a trend that you’re seeing, and do you feel that you have the technology to work with that?

Belling: More and more, we are seeing various chat communications, especially in investigations. We have been vetting some new technologies that allow you to integrate/thread chat and other text messaging together with email. Finding technologies that can take a variety of communications and meld them together so we can see the story is essential.

MCC: How do you and your teams work with clients to control costs? How do you determine what information is relevant and needs reviewing? How do you balance the need to control costs and mitigate risk?

Belling: We’re aggressive with technology in early-case assessment and data culling stages. We want to ensure that we have performed data culling in a defensible manner. We also want to make sure that we’re getting it down to the smallest volume possible before we’re engaging in the review. We know that document review is a very expensive process, and so we are very focused early on to make sure that we are reducing the amount of documents that require eyes on review.

A combination of analytics and predictive coding allows us to validate search terms, identify and locate relevant data that may have fallen outside the traditional search terms, and understand key concepts in our data even before the review begins. We also use technology to limit email that requires review by only reviewing the unique email content. We typically see a 20 to 40 percent reduction in email alone. Additionally, by clustering related email and similar documents, consistency and speed simultaneously improve.

Those techniques, along with prioritizing the documents based on predictive coding results, dramatically decrease the cost and time associated with document review. The joint simplicity of our repeatable and defensible work flows and the complexity of our proven techniques control cost, reduce risk, improve quality and accelerate our delivery.

I think it’s important to mention that we see our relationship with top-notch vendors such as Inventus as a partnership. We look to their technology experts to augment our team. We encourage Inventus to help us refine our work flows or enhance the technologies that we’re using to ensure that we’re jointly successful at achieving our client’s goals. I appreciate that Inventus understands our desire to identify methods to increase efficiency, save our clients money, and mitigate risk. I value the relationship and partnership that we have with them.

Sisemore: I couldn’t have said it better, and I also value our relationship and
partnership with Perkins Coie. To expand a little bit on what Janelle said: From the Inventus perspective, we view all of our client relationships as partnerships with the end goal of becoming a seamless extension of their team. Developing a true partnership lends itself to collaboration when identifying the best possible solutions, work flows and technology to efficiently accomplish the client’s end goal.

Then to briefly touch on the technology component Janelle mentioned, it’s really an important component when trying to reduce costs and mitigate risk. We’re leveraging best-in-breed technology along with custom-developed work flow, middleware and stand-alone platforms to help streamline the process. Our e-discovery ecosystem, Luminosity, which is built in and around LAW PreDiscovery and Relativity, includes technology such as inVerito, which is our custom ECA work flow within Relativity; M3 or Multi-Matter Management, which allows us to reuse or repurpose data and attorney work product across multiple matters.

We also deploy things like Advanced Logix, which programmatically puts a document review on guardrails. We also have auto privilege log generator. This is the Inventus solution to automating the creation of privilege logs. Finally, we developed Spotlight, which is a business analytics dashboard that provides real-time visibility into all the key metrics our clients need. When developing these partnerships with firms like Perkins Coie and clients, we’re giving them this enhanced technology to help better reduce costs and mitigate risk.

MCC: This goes back to the new data sets, but more on the front end. What trends are you seeing in new data sets or communications that are included in the review process, and how do you help your clients prepare information governance policies for these new platforms?

Belling: We are looking for trends in how people are communicating within a data set. Communication trends help us identify people that may be involved in a matter that we might not have known about. We want to be able to see changes in when and how people are communicating. They can assist us in identifying key concepts or themes that are in the data set that could help us prioritize the review and enhance the document analysis.

We’re focused on using technologies that tie together the countless ways our clients communicate, for example with email, text, instant messaging, chat groups, et cetera. It can be difficult to tie together various forms of conversation and really understand how they are truly communicating. With that said, weaving those forms of communication together is essential for us to be able to tell the story.

Also, it helps us fully understand the matter from a communication thread perspective. If we see the communications weaved together chronologically when we’re conducting a document review, we’re making smarter and more consistent review decisions. With so many varieties of communication, we’re needing to stay on top of it and figure out how we mesh them together and how we make sure that we’re pushing those communications clustered together in an organized fashion to our review teams.

Additionally, we use technology to assist in preparing an outline of the scope of our client’s data and information. We want to be able to identify how it’s stored and organized, accessed and regulated. That knowledge supports efforts for us to identify their retention, preservation and production obligations.

Sisemore: I think Janelle hit the nail on the head. From a service-provider perspective, it’s important for us to continually be looking at new technology, emerging technology, and understanding how to implement it with our existing technology and ultimately again help our clients to, or enhance our client’s ability to deal with these emerging technologies in communication. It’s imperative for the service provider to continue to vet those new technologies and have those as offerings for our partners and clients.

MCC: What changes are you seeing in the courts and the litigation process as a result of the recent changes to the federal rules of civil procedure?

Belling: Well, first of all, I’m not a lawyer, but I have personally observed the effect of the recent rule changes on the managed e-discovery process. The goal to introduce proportionality into the e-discovery process and the requirement of the parties to be transparent and cooperative in the e-discovery process provides an argument for technology and appropriate expenses related to the e-discovery process.

Parties are now encouraged to discuss e-discovery in advance of review and production and far in advance of even collection. It’s increasing the collaboration and cooperation between parties. Further, with courts now endorsing the use of technology-assisted review and other analytical measures to reduce the burden and decrease the cost, the conversation with opposing parties is a much easier one today. From my perspective, speaking as a technologist, it’s a much easier conversation with our clients and the lawyers that we support, as well.